Open court
Meaning of Open Court?
“Open court” refers to judicial proceedings to which the public has access. Public access includes the ability to attend courtroom proceedings, as well as access to court records and transcripts[1]. Open Courts are normal courts where proceedings of the court are conducted where every person is allowed to watch the proceedings of the Court. The open court principle in practice means that court proceedings, evidence, and documents be open to public scrutiny and juries and judges should give their decisions in public. There are two primary reasons why the open court principle developed. It exists mainly to (1) protect the interests of those who are subject to the authority of courts, and (2) permit democracy to work.
The principle of open court is embodied in the words of Jeremey Bentham, “Publicity is the very soul of justice”[2]. The idea of open court is crucial to maintaining public confidence in the administration of justice and to ensure a check on the process of adjudication in judicial proceedings[3].
Official Definition of Open court
Black’s Law Dictionary defines an “open court” as follows: “… a court to which the public have a right to be admitted… This term may mean either a court which has been formally convened and declared open for the transaction of its proper judicial business, or a court which is freely open to spectators…[4]”.
The term “open court” do not have any literal legal codification, but the Supreme Court in Mohammed Shahabuddin vs. state of Bihar defined open court as follows “open court is a court to which general public has a right to be admitted and access to the court is granted to all the persons desirous of entering the court to observe the conduct of the judicial proceedings[5].”
Legal Provisions relating to open court
The concept of open courts is not alien to the Indian legal system. The Constitution adopts the concept in Article 145(4), which states that the Supreme Court shall be an open court: “(4) No judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under Article 143 save in accordance with an opinion also delivered in open Court[6].” The Code of Civil Procedure, 1908, (“CPC”) and the Code of Criminal Procedure, 1973, (“CrPC”) apply the principle of open courts to all civil and criminal courts in India. Section 153-Bof the CPC[7] provides that every civil court which tries a suit shall be deemed to be an open court. Similarly, Section 327 of the CrPC[8] also mandates criminal courts to be open.
Exceptions to the principle of open court
In the interest of prudence, good conscience, and equity, it is established that the following proceedings cannot be open to the public.
Section 53 of the Indian Divorce Act of 1869 addresses the "Power to close doors," allowing the entire or partial proceedings under this Act to be conducted in private if deemed appropriate by the Court[9]. Section 153-B Proviso of the Civil Procedure Code, as amended by Act 104 of 1976, stipulates that the presiding judge may, at any stage of a particular case, order that the public or any specific individual be restricted from accessing or remaining in the courtroom[10]. Section 11 of the Family Courts Act of 1984 emphasizes that proceedings covered by this Act may be held in camera at the discretion of the Family Court or upon the request of either party[11].
In cases involving offenses under The Protection of Children from Sexual Offences Act of 2012, Section 37 mandates that trials be conducted in camera. Special Courts are required to conduct these trials privately, with the presence of the child's parents or a trusted individual[12].
Historical evolution
The tradition of public hearings in English court proceedings traces back to the Norman Conquest. The Magna Carta of 1215 solidified the emphasis on the right to open courts [13], a principle reinforced by Sir Edward Coke [14], who stressed the significance of conducting trials openly in the King's Courts. In 1565, Sir Thomas Smith connected the public nature of English trials to the need for a documented record due to limited written legal documentation [15].
In the 19th century, Jeremy Bentham contributed to the theoretical foundation of the modern presumption of openness. He highlighted benefits such as enhanced performance, judge protection, and public education [16]. Additionally, Hale[17] and Blackstone[18] underscored the importance of the open examination of witnesses and trial publicity for uncovering the truth.
In the United States, the Sixth Amendment[19] guarantees the right to a public trial, intricately linked to the First Amendment's rights of free speech, press, and assembly. This right was recognized early in U.S. history, appearing in William Penn's Code of Laws in 1682 and finding formalization in state constitutions by 1776. It was ultimately ratified in the federal constitution in 1791. Meanwhile, in Canada, the Criminal Code initially endorsed open courts in 1892. However, amendments in 1953 allowed for the exclusion of the public in specific cases, guided by considerations of public morals, order maintenance, or proper justice administration.
Open Court and Live Streaming
The Supreme Court E-Committee in India has introduced comprehensive model rules for the live streaming and recording of court proceedings, outlining guidelines for hardware placement, control mechanisms, and the requisitioning and positioning of human resources within the court. The rules specify exclusions from live streaming, encompassing sensitive areas such as matrimonial matters, child adoption, child custody, sexual offenses under IPC Section 376, cases related to gender-based violence against women, and those falling under the POCSO Act and the Juvenile Justice Act. The guidelines also detail the manner of recording proceedings, including disclaimers, prohibitions, and restrictions. Notably, the High Court retains the power to relax any rule causing undue hardship, ensuring flexibility in application to deal with cases justly and equitably[20].
International experiences
Various legal systems around the world have recognized the importance of the principles of Open Court, with minor variations in their interpretation and application.
In the English legal system, there is a fundamental norm that justice must be administered publicly during hearings accessible to anyone within the court's capacity, with the proceedings reportable by the press[21]. Emphasizing the significance of this principle, the court in R v City of Westminster Magistrates’ Court described it as 'a fundamental element of our system of justice and vital to the rule of law.' This principle fosters transparency, enabling the public to scrutinize the legal system for better or worse[22]. In A-G v Leveller Magazine Ltd[23], The House of Lords laid down certain principles:
1. The standard practice is for criminal proceedings to be conducted publicly.
2. However, courts possess the authority to exclude the public if necessary.
3. The exercise of this power, like any departure from the open justice principles, should be strictly limited to cases where the public's presence would obstruct or make impractical the administration of justice.
The American Legal System has enriched the right of public access to court proceedings in their Constitution. Specifically, the 6th Amendment of the United States Constitution guarantees defendants the right to a public trial, encompassing all phases of criminal cases[24]. Moreover, the Supreme Court has articulated that the press and the public possess a similar and independent right under the 1st Amendment to attend all criminal proceedings in both federal and state courts[25].
While the Supreme Court has not explicitly affirmed a First Amendment right of access to civil proceedings, federal and state courts addressing the matter have overwhelmingly concluded that there exists a public right to access in civil cases under the 1st Amendment.
Despite its constitutional nature and origin, the right to public and open hearings is not absolute. It may be subject to considerations of other competing rights or interests. For instance, interests in security, preventing disclosure of non-public information, ensuring a fair trial, or protecting a child from emotional harm may potentially outweigh the right to public access. The constitutional guarantee, therefore, is not without exceptions and may be carefully weighed against other compelling considerations[26].
Shifting the focus to international law, Article 67(1) of the Statute of the International Criminal Court states that “In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially[27].”
Research that engages with Open Court
Open Courts in the Digital Age: A Prescription for an Open Data Policy (vidhi)
the report explains the technological foundations of open data, traces the evolution of open courts in India, highlights the issues that remain for open courts, and suggests how an open data policy can address potential privacy concerns, among other recommendations.
Balancing Open Courts with The Right to Privacy – An Indian Perspective (Daksh) - This paper navigates the balance between public access and privacy in judicial proceedings, defining judicial data, categorizing personal information, and addressing the unique privacy challenges of open court records. Examining the transition to digital records and legal dimensions of privacy in India, it reviews intersections with open court principles. The conclusion provides practical suggestions to mitigate conflicts between the right to know and privacy, drawing from court decisions and the existing regulatory framework, including the Right to Information Act, 2005[28].
Live Streaming of Court Proceedings: A Substantial Step Forward - The article praises the Supreme Court of India's decision to live stream Constitution Bench proceedings, citing it as a step toward transparent and accessible justice. It underscores technology's role in promoting accountability and public confidence. While recognizing the need for in-camera trials in specific cases, the article urges other courts to adopt live streaming, enhancing public understanding of legal processes and ensuring broader access to justice[29].
How will live-streaming court hearings change the way the Indian justice system works? - The article explores the implementation of live-streaming court proceedings in India, noting its positive impact on access to justice. It acknowledges concerns about sensationalism and its effects on courtroom behaviour. The adoption of live-streaming by High Courts, along with outlined rules, is discussed, providing a concise evaluation of the evolving legal landscape in the digital age[30].
Open Courts and Media - The article emphasizes the importance of open courts and the media's role in shaping public trust in the judiciary. Recent developments, like the Supreme Court's media app for live-streaming, highlight the evolving relationship between the two. It discusses courts' control over media access and the need for clear court reporting. Anticipating increased public broadcasting, the author calls for enhanced court-media interactions to ensure transparency and accountability[31].
Victim Privacy and the Open Court Principle – This paper analyses the conflict between victim privacy and the open court principle, with a focus on sexual assault proceedings in the Anglo-Canadian legal tradition. It traces the evolution of the open court principle from common law to constitutional status, emphasizing the transformative impact of the Charter of Rights and Freedoms on victim status. The report underscores the Supreme Court's recognition of a right to victim privacy, particularly in sexual assault cases, and explores the delicate balance between protecting privacy and upholding the open court principle[32].
Other word
The principle of open court, open Justice
References
- ↑ Open court, Legal Information Institute. Available at: https://www.law.cornell.edu/wex/open_court (Accessed: 21 November 2023).
- ↑ John Bowring (ed), The Works of Jeremy Bentham: Vol. VI (London, 1843) 351–2.
- ↑ Naresh Shridhar Mirajkar v State of Maharashtra (1966) 3 SCR 744.
- ↑ Black’s Law Dictionary, 6th Edition, 1990, page 1091. The Black’s Law Dictionary, 10th Edition, 2014, page 1263 defines an “open court” thus: “1. A court that is in session, presided over by a judge, attended by the parties and their attorneys, and engaged in judicial business… The term is distinguished from a court that is hearing evidence in camera or from judge that is exercising merely magisterial powers. 2. A court session that the public is free to attend…”
- ↑ Mohammed Shahabuddin vs. state of Bihar (2010) 4 SCC 653
- ↑ The Constitution of India, 1950, Art. 154(4).
- ↑ The Code of Civil Procedure, 1908, §153-b.
- ↑ The Code of Criminal Procedure, 1973, §237.
- ↑ Indian Divorce Act of 1869, §53.
- ↑ The code of Civil Procedure, §153-B.
- ↑ The Family Courts Act of 1984, §11.
- ↑ The Protection of Children from Sexual Offences Act of 2012, §37.
- ↑ William Sharp Mckechine, Magna Carta: A Commentary on the great charter of King John 395 (2d ed. 1914).
- ↑ E. Coke, 2 Institutes of the Laws of England (1642) at pp. 103-104.
- ↑ Thomas Smith, De Republica Anglorum (1970).
- ↑ Jeremy Bentham, Rationale of Judicial Evidence 522–25 (1827).
- ↑ Sir Matthew Hale, the History of the Common Law of England (ed. Gray, 1970).
- ↑ JONES; BLACKSTONE 1983 (1916)
- ↑ U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .”);
- ↑ Model Rules for Live-Streaming and Recording of Court Proceedings, Available at: https://ecommitteesci.gov.in/document/model-rules-for-live-streaming-and-recording-of-court-proceedings/
- ↑ Scott v Scott [1913] AC 417.
- ↑ R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2013] QB 618, at [1].
- ↑ A-G v Leveller Magazine Ltd [1979] AC 440.
- ↑ US Const. amend. VI.
- ↑ Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
- ↑ Waller v. Georgia, 467 U.S. 39 (1984).
- ↑ The Statute of the International Criminal Court, art. 67(1).
- ↑ https://www.dakshindia.org/wp-content/uploads/2023/08/Judicial-Data-Paper-1-1.pdf
- ↑ Muneeb Rashid Malik (2022). [The Viewpoint] Live Streaming of Court Proceedings: A Substantial Step Forward. [online] Bar and Bench - Indian Legal news. Available at: https://www.barandbench.com/law-firms/view-point/live-streaming-of-court-proceedings-a-substantial-step-forward [Accessed 10 Dec. 2023].
- ↑ Poddar, U. (2022). How will live-streaming court hearings change the way the Indian justice system works? [online] Scroll.in. Available at: https://scroll.in/article/1034572/how-will-live-streaming-court-hearings-change-the-way-the-indian-justice-system-works [Accessed 10 Dec. 2023].
- ↑ Prakash, S. (2021). Open Courts and Media - Daksh. [online] Daksh. Available at: https://www.dakshindia.org/open-courts-and-media/ [Accessed 10 Dec. 2023].
- ↑ Cameron, J. (n.d.). Victim Privacy and the Open Court Principle. [online] Available at: https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgiparams=/context/reports/article/1167/&path_info=Cameron_2003_Victim_Privacy_and_the_Open_Court_Principe.pdf [Accessed 10 Dec. 2023].
